If a Twitter Subpoena Comes by Fax, Did It Really Happen?

Malcolm Harris, a 23-year-old writer and editor, was informed by Twitter early this week that his account had been subpoenaed by the office of Manhattan District Attorney Cy Vance. He's concerned about law enforcement's reach into the newfangled social platform and is seeking to quash the subpoena, calling out, among other things, the method by which it was delivered.

Malcolm Harris, a 23-year-old writer and editor, was informed by Twitter early this week that his account had been subpoenaed by the office of Manhattan District Attorney Cy Vance. He's concerned about law enforcement's reach into the newfangled social platform and is seeking to quash the subpoena, calling out, among other things, the method by which it was delivered. The DA's office, apparently, sent it by fax, handwritten cover sheet and all. How new and old worlds collide!

Joan Vollero, Deputy Director of Communications for the Manhattan DA's office, did not shed light on exactly what prosecutors hope to learn from Harris's Twitter account data, explaining that Harris is "charged with disorderly conduct." The subpoena asks for "any and all user information, including email address, as well as any and all tweets posted for the period of 9/15/2011-12/31/2011" from Harris's account.

Harris said, upon being told that the Manhattan DA's office refused to comment on what they hoped to gain from his Twitter account, "Maybe the Manhattan DA's office would be more forthcoming answering questions about the proper procedure for filing an out-of-state subpoena, because I sure as hell would like to hear what they have to say on that one. Last time I checked, you couldn't serve people via fax."

New world (aka, digital) ways determinedly persisting, upon receiving the subpoena Twitter turned around and informed Harris of it by email, despite a direction on the subpoena asking them not to tell anyone about it. Harris then took to his Twitter account, @destructuremal, surprised and a bit freaked out, to announce that this had all happened.

This clashing of the traditional and the modern is perhaps no better reflected than by Occupy Wall Street itself, the protest effort that brought "action" back into everyday speech and made "Occupy" a meme. Harris had been arrested on the Brooklyn Bridge along with hundreds of other Occupy Wall Street protesters in October of 2011. He was charged with disorderly conduct, which he says "is not even a misdemeanor; it's a violation." Instead of accepting a deal from prosecutors, as some protesters have, he pleaded not guilty. Being arrested for protesting is nothing new. Having your Twitter account subpoenaed so that the DA can make a case, on the other hand, heads into waters that are only just being charted.

Vollero did say that the subpoena does not mean a representative from Twitter has to show up in court or testify on February 8, the date on the subpoena. "They could," she said, "but they don't have to." (Can they Skype in, we wonder?)

Back to the old world, from a copy of the complaint against Harris provided by the DA's office:

Deponent states that deponent is informed by Sergeant Brian Byrnes, shield #00969 of the Patrol Boro Manhattan South Task Force, that informant observed defendant standing in a group of approximately six-hundred individuals in the traffic lane of the above-listed location. Deponent is further informed by informant that the above-described conduct of the defendant obstructed vehicular traffic and created a public disturbance/inconvenience in that it prevented all vehicles from being able to use the roadway at the above-listed location.

Harris said he and his lawyer, Martin Stolar of the National Lawyers Guild, believe the subpoena is "an overreach of police power" and are preparing to file a motion to quash it. "There've been no conspiracy charges filed against me or anyone," he said. "They're using the subpoena for improper purposes." He said Twitter has agreed to hold off on sending any of his account information pending the resolution of the motion. Reuters noted in its report that "Harris is not sure what tweets could be fodder for prosecutors; Twitter's interface does not allow him to review all of his old tweets."

This is not the first subpoena of a Twitter account by the Manhattan DA, Vollero confirms, though Harris's seems to be the first related to the Brooklyn Bridge arrests to be made public. (The proliferation of such subpoenas related to Occupy Wall Street is being documented on Scribd under the title "OpSubpoena This.")

The Manhattan DA's office refused comment on their protocol for serving subpoenas. It's unclear whether Twitter agreed to receive the subpoena that way, but, on the bright side, at least their fax machine is getting some exercise!

Harris is due back in court on February 29. In the meantime, he's still tweeting.

This article is from the archive of our partner The Wire.

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Jen Doll is a former staff writer for The Wire. She is the author of Save the Date: The Occasional Mortifications of a Serial Wedding Guest.